Treaties and Executive Agreements

The CHAIRMAN. We would like to have you all the time, if we could, Senator.

(Whereupon, at 12:15 p. m., the committee was recessed, to be reconvened at 2:30 p. m. this same day.)

AFTERNOON SESSION

The CHAIRMAN. Come to order.

STATEMENT OF ALFRED J. SCHWEPPE Resumed

The CHAIRMAN. Mr. Reporter, we will let the record show that we have a letter here from Americans for Democratic Action, sent by John J. Gunther, legislative representative, which we are placing in the record, and I am asking the clerk to notify them to be ready next Tuesday afternoon, and Mr. Dulles will be here if we can get him, Tuesday morning, if he can possibly be here at that time, and notify the Attorney General and anyone else that has requested to be heard at that time.

(The letter referred to follows:)

Hon. WILLIAM LANGER,

AMERICANS FOR DEMOCRATIC ACTION,
Washington D. C., February 16, 1953.

Chairman, Senate Committee on the Judiciary, Washington, D. C. DEAR SENATOR LANGER: Today we received notification of the hearings scheduled before your committee on Senate Joint Resolution 1, proposing an amendment to the Constitution of the United States relative to the making of treaties and executive agreements, these hearings to be held Wednesday, February 18, 1953.

Americans for Democratic Action is very much interested in the proposed resolution and would appreciate the opportunity of presenting its views to your committee. On February 11, 1953, we inquired at the offices of the Judiciary Committee as to hearings on Senate Joint Resolution 1 and were informed that no hearings had been scheduled.

Our first notice of the hearings was today, February 16. This would give our organization but 48 hours to prepare its statement, secure a competent witness, and appear before your committee. Or, if we are to comply with the Legislative Reorganization Act as requested in your notification of the hearings, we should have but 24 hours to prepare the statement and have it in your office. In view of the importance of this resolution and the seriousness of the consequences which we believe might flow from such an amendment to the Constitution, we ask that we be permitted to testify at a later date, and that all organizations interested in this proposal be given sufficient notice to permit them an opportunity to properly prepare and present their case.

While it is true that many of the organizations testified last year on the proposal of Senator Bricker, adequate time has not been available this year to complete studies on the new Bricker resolution, which is a considerable change from the last year's proposal.

To amend the Federal Constitution is a serious matter, particularly so when the amendment goes to the very question of national sovereignty. Two days' notice of hearings on this all-important question is inadequate.

Very truly yours,

JOHN J. GUNTHER, Legislative Representative.

The CHAIRMAN. Will you continue, Mr. Schweppe? Mr. SCHWEPPE. Mr. Chairman, I shall continue where I was at lunch.

Now, by adding the third idea in the "which clause" which is the last portion of our proposal, we make it very very clear that the Congress does not acquire additional legislative power by virtue of

a treaty on the subject but that congressional power remains the same as it is under the Constitution, unaffected by the ratification of the treaty, and State power remains the same under the Constitution, unaffected by the ratification of the treaty; and the balance between State and Federal power will not be changed by treaty but can only be changed by constitutional amendment.

I want to make one additional point which our proposal covers, and which removes a very substantial problem of constitutional constuction. It is set forth in our February 1, 1952, report. (See 1952 Senate Hearings on Treaties and Executive Agreements, p. 484.) It is with respect to the situation of the first amendment. It is a point which has been overlooked, I think, by many writers on the subject. We pointed it out as early, I think, as 1950. The first amendment is the amendment which we say protects freedom of speech, freedom of press, and freedom of religion. But what is the language of the first amendment? That so-called protection is in this form:

Congress shall pass no law respecting those three subjects.

"Congress shall pass no law" is a limitation on Congress. Congress does not make treaties. The treaty power is vested in the President and the Senate. If you will not only read the constitutional language itself, but go back to the Federalist, you will see that the founding fathers determined that they should set up a separate agency for the making of treaties. There was discussion as to whether Congress should make them. There was a discussion as to whether the President should make them alone. They determined not to put the power in Congress. They determined not to put it in the President. They determined to set up a separate treatymaking agency consisting of the President and the Senate. The limitations in the first amendment with respect to freedom of speech, press, and religion are only limitations on Congress. They are not a limitation on the treaty making power.

To show you how important that is, the United Nations has in the works now a so-called treaty on freedom of information which deals with freedom of speech and freedom of press. The United Nations proposed Covenant on Human Rights has in its provisions relating to freedom of speech and freedom of press, which are to be dealt with under the treatymaking power.

Providing that no treaty shall have internal effect in the country unless Congress legislates will squarely bring into effect the limitation of the first amendment that "Congress shall pass no law," which at the present time is a wide-open question.

Professor Chafee, in an article he wrote in the Wisconsin Law Review a year or two ago, undertook to address himself to this particular problem, to wit, our committee's comment that the first amendment is a limitation on Congress and not on the treatymaking power. He comes to the conclusion, as I recollect it, that while our point looks very serious we must assume that the Supreme Court will ultimately refuse to adopt that view.

We are not satisfied with that sort of speculation. We believe that that gap should be closed, and that there should be no doubt whatsoever that nothing can be done under the treatymaking power that Congress is prohibited from doing under the first amendment.

These are the principal points incorporated in the amendment recommended by the house of delegates of the American Bar Association.

30572-53-5

The committee on peace and law has examined all of the proposals on treaties and executive agreements now pending in Congress. While your committee believes that the text previously recommended by it fully and adequately covers all of the constitutional principles which are involved, and which were approved by the house of delegates of the American Bar Association, an even shorter version, wholly within those principles, could appropriately read as follows:

SECTION 1. A provision of a treaty which conflicts with this Constitution shall not be of any force or effect. A treaty shall become effective as internal law in the United States only through legislation which would be valid in the absence of treaty.

SEC. 2. Executive agreements shall be subject to regulation by the Congress and to the limitations imposed on treaties by this article.

This shorter text is embodied in Senator Arthur Watkins' Senate Joint Resolution 43, now pending here.

Because the final text of any proposed constitutional amendment will be drawn by the Judiciary Committees of Congress, our committee suggests that you also give this shorter version consideration.

By way of brief summary of the situation since the American Bar Association text recommendation was made to Congress for consideration, no objection has been offered to the first sentence rendering void all treaties in conflict with the Constitution, except that such a statement is "unobjectionable in itself but unnecessary" (Zechariah Chafee, Jr., Harvard Law School Record, February 21, 1952; see American Bar Association Journal, September 1952, p. 794). Nor has much substantial opposition been expressed to the first clause of the second sentence which renders all treaties non-self-executing until Congress acts by implementing legislation, thus putting the United States in this respect on a parity with the great majority of nations. In virtually all of the countries of the world a treaty, while effective as an international obligation upon ratification, does not become domestic law unless and until made so by parliamentary action. (See American Bar Association Journal, September 1952, pp. 468, 469; Report of Committee on Peace and Law, September 1, 1950.)

The principal attack on the treaty amendment recommended by the American Bar Association centers on the last clause of the second sentence, usually referred to as the "which clause." That clause provides that implementing legislation by Congress intended to make treaties effective as internal law must be legislation by Congress "which it could enact under its delegated powers in the absence of treaty." As stated, the "which clause" is intended to set aside the rule of Missouri v. Holland (252 U. S. 416), which establishes the principle that when the United States makes a treaty on a subject within the treaty power, the Congress can enact legislation to implement the treaty which it would not have power to enact in the absence of a treaty, and thus enter a field normally reserved to the States. That decision makes possible the complete upsetting of the constitutional balance between Federal and State power through the exercise of the treaty power by the President and two-thirds of the Senators present (American Bar Association Journal, September 1952, p. 795). The objection to the American Bar Association draft was stated in the committee report to the New York State Bar Association as follows:

The result would be that even if a treaty deals with an appropriate subject of international agreement, the Congress would have no power to implement it or

make it effective in the United States, unless the subject matter were one on which Congress could legislate in the absence of a treaty (p. 12).

Among the examples mentioned in the report are "treaties giving the right to do business or own or inherit land, with reciprocal rights for our citizens abroad" (p. 12).

The objection is founded upon the untenable assumption that the President and the Senate acting as a treatymaking power have broader legislative power over the people of the United States than the Congress itself, in which the people by express grant in the first part of the Constitution vested "all legislative power." You must remember that Jefferson said in his Manual of Parliamentary Practice:

It [the treaty clause] must have meant to except out all those rights reserved to the States; for surely the President and the Senate cannot do by treaty what the whole Government is interdicted from doing in any way (quoted from American Bar Association Journal, September 1952, p. 736).

So far as concerns the specific objection resulting to aliens in this country, in return for reciprocal rights for our citizens abroad, such concessions have been a well-established part of the commercial policy of the United States from the beginning of the Republic. They have been identified particularly with the treatymaking powers because treaties are usually the form in which reciprocal agreements between nations are made. To urge that Congress is incapable of exercising its constitutional power to regulate commerce with foreign nations, and that such regulation cannot be had except through the exercise of the treatymaking power constitutes a confusion of constitutional power; it creates limitations upon congressional power in the interest of enlarging the treaty power. By virtue of its power to regulate foreign commerce, to define and punish offenses against the law of nations, to declare war, and so forth, the Congress now has delegated power to legislate with respect to all of the important subjects in the legitimate treaty field. (See American Bar Association Journal, June 1952, p. 470).

Insofar as Congress does not have power under the Constitution to legislate, the consent of the several States must be appropriately obtained such is the case, for example, in Canada, which is also a Federal state. (See American Bar Association Journal, September 1952, p. 794; ibid., June 1952, p. 469.)

Mr. SCHWEPPE. Yes.

By virtue of its power to regulate foreign commerce

these are specifically granted powers

to define and punish offenses against the law of nations, to declare war, and. so on, Congress now has delegated power to legislate with respect to all of the important subjects in the legitimate treaty field.

The CHAIRMAN. You read the debates in the United Nations when the charter was adopted?

Mr. SCHWEPPE. Yes.

The CHAIRMAN. Senators Vandenberg and Connally assured the Congress that the United States was not divorcing itself from sovereignty, the right to declare war.

Mr. SCHWEPPE. Yes; I remember that.

The CHAIRMAN. Yet we go ahead with the war in Korea without Congress being consulted at all.

Mr. SCHWEPPE. Yes.

The CHAIRMAN. What do you say to that?

Mr. SCHWEPPE. I felt that the constitutional powers of the President were exceeded and the constitutional powers of the Congress of the United States were bypassed in that particular episode.

The CHAIRMAN. You maintain that Senator Vandenberg and Senator Connally were right in their interpretation of the United Nations Charter?

Mr. SCHWEPPE. Yes.

Those who object to the so-called "which clause" in the American Bar Association treaty proposal fail to appreciate the real significance of this clause to the preservation of our form of government against the abuse of the treaty power, originating in the type of agreements which the executive arm of the Government has been negotiating in the last few years in the name of human rights and in other areas. Without such a constitutional limitation, and within the recent State Department concept that "there is no longer any real distinction between domestic and foreign affairs" (see American Bar Association Journal, September 1952, p. 737), the President and two-thirds of the Senators present could take over the entire area of internal law now reserved to the States:

Supporters of the association's amendment have been challenged to point to any ratified treaty raising questions that show the need for a constitutional limitation on the treaty-making power. The only treaty which has actually been ratified is the United Nations Charter itself, which has undoubtedly, under Missouri v. Holland, already conferred on Congress the unlimited power to implement by legislation treaties on all matters, including individual rights, covered by that instrument (American Bar Association Journal, September 1952, p. 796.)

I pause there a moment to make this commentary: The United Nations Charter has in it those famous articles 55 and 56 which relate to the promotion of human rights. The United States has become a party to that charter under the treaty clause. My committee and the rest of us who have considered this subject are convinced that the United Nations Charter in those articles has already conferred on the Congress of the United States the power to take over the whole field of human rights and pushing the States out of the way. That treaty has already been ratified and is on the books.

Your committee has for several years given constant and serious study as to the most effective means of dealing with these real and potential extensions of the treatymaking power. After considering all alternatives, it concluded that the only sure safeguard against present and future risk is a constitutional amendment, which while preserving the treatymaking power in all its effectiveness in matters which are genuine subjects of the international agreements, will close the gap for such distortions as those just mentioned. The house of delegates of the American Bar Association agreed.

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